Centre for the Study of Violence and Reconciliation

Magistrates Under Apartheid:
A case study of professional ethics
and the politicisation of justice

by
Paul Gready & Lazarus Kgalema

Research report written for the Centre for the Study of Violence and Reconciliation, August 2000.

Paul Gready is from the Institute of Commonwealth Studies, University of London.

Lazarus Kgalema is a former Researcher at the Centre for the Study of Violence and Reconciliation.

Funding for the project came from the Economic and Social Research Council in the United Kingdom and CSVR. Thanks to Hugo van der Merwe for editorial comments on the report. The authors of this report welcome comments, corrections and questions.

Executive Summary

The Truth and Reconciliation Commission (TRC) institutional or sector hearings represented an innovative attempt to gain insight into the societal context within which human rights abuses took place under apartheid. This paper is both a response to, and an off-shoot from, one of these hearings, the legal sector hearing held in October 1997. The hearings, like much previous commentary, revealed the extent to which the legal profession became complicit in the implementation of apartheid. Most analysis has focused on the fact that judges declined to appear at the hearings, on the grounds that it would compromise their independence. But magistrates were also largely absent. This was a cause for concern because the majority of South Africans came into contact with the apartheid legal system primarily through magistrates.

Magistrates during apartheid were public servants and as a result their independence was significantly compromised. Among the wide powers and jurisdiction they enjoyed, magistrates performed crucial functions in relation to political detainees, including overseeing the complaints and safeguard machinery. It was on the complaints and safeguard system that this study was initially focused. There is voluminous evidence that the complaints and safeguard system failed to protect detainees. This paper argues that it this system was inherently flawed, because as employees of the state magistrates confronted the situation of dual loyalties, on the one hand to their employer and colleagues and on the other to the detainee whose well-being they were charged with ensuring. This situation of dual obligations is crucial to understanding the attitudes and conduct of magistrates.

Magistrates' own understanding of their work remains unknown. This research project has extended beyond its initial area of concern to include other aspects of magistrates' interaction with detainees – such as the taking of confession-statements - some more general analyses of their structural position and approach (for example, observations on the relationship between law and justice), and an assessment of the ongoing process of transformation affecting the magistracy. A separate report has been written on the latter topic (Kgalema and Gready 2000).

The main source of information for this study was interviews with magistrates. The interviews took place in Gauteng during August and September 1999. In all, 24 magistrates were interviewed, of whom four were African and four female.

The main findings of this report are as follows.

1) Magistrates presided over a safeguard system for detainees that was designed to fail for the following reasons:

2) Due to the way in which magistrates administered the safeguard and complaints machinery they made an already flawed system worse. Three main ways emerged from the interviews:

3) The next section of the report argues that the confession-taking process mirrored the safeguard system. It too was and still is structurally flawed, but was again made worse by the way in which magistrates engaged with their mandate: a routinised and bureaucratic approach, a lack of engagement with or easy disengagement from their potential to protect and safeguard, and a trust in and association with the custodial authorities that undermined magisterial effectiveness.

4) In order to understand why magistrates became complicit in rendering faulty systems oppressive, and thereby in human rights abuses, it is necessary to examine their reflections on independence and the relationship between law and justice. Alongside the fact that magistrates saw law and justice as synonymous, one of the important themes that comes out of the interviews is the distinction made by magistrates between structural authority (law, government) and the individual, and a belief that it was possible for an individual to inhabit and serve the structures while remaining independent, to secure justice, for example, within an unjust legal and state machinery. This set of attitudes, it is argued in this report, needs to be seen as a retrospective device enabling magistrates to distance themselves from and even criticise the apartheid regime for which they worked, while maintaining their individual credibility.

5) The paper concludes with an examination of magistrates' reflections on, and moral engagement with, their individual and collective pasts. In general the scenario outlined by magistrates was as follows: torture did occur, they as magistrates knew about and were opposed to it, but lacked proof to back up the rumours, hunches and allegations.

Magistrates unanimously declared that their role in overseeing the safeguard and complaints system did not make them complicit in detention without trial or custodial abuse. Even when admitting that the system had failed to achieve its purported ends, magistrates granted themselves a clean bill of health. What criticisms there were never quite translated into self-criticism. This section on reflection and moral engagement concludes with an analysis of magistrates' observations about the issue of apologies: is an apology from magistrates needed? If so, for what?

In conclusion, it is clear that, despite isolated and partial exceptions, magistrates in general lacked and still lack a moral vision to condition or evaluate their conduct. As a result, their moral engagement with the past is selective and self-interested. Magistrates were clearly not responsible for all of the ills that characterised, for example, the custodial system. These ills were the result of a complex relationship between unjust laws and government, politico-legal structures (such as magistrates being public servants) and a professional culture (magisterial allegiance to the state and its employees and the equation of the law with justice). However, magistrates do need to examine the ways in which they made a bad system worse and how they could have acted differently. The gap between these two modes of conduct, across a range of spheres of influence, can be seen as the area of magisterial complicity with the human rights abuses that took place. This complicity needs to be acknowledged and apologised for, thereby providing the cornerstone of reconciliation. While the move to an acknowledgement that abuses took place has generally been made, an acknowledgment of personal complicity in such abuses is completely lacking.

With a view to facilitating this shift from general acknowledgement to self-acknowledgement, and to enable the magistracy to address the past and move on into the future, the paper's main recommendation is that the Magistrates' Commission and other relevant institutions should convene a mechanism of institutional introspection such as an Internal Reconciliation Commission (IRC), to discuss with magistrates and a range of relevant stakeholders the role magistrates played in the past and ways of ensuring that mistakes are not repeated in the future.

Introduction

The Truth and Reconciliation Commission and the Legal System

South Africa is emerging from decades of systematic discrimination affecting every aspect of civil society. The Truth and Reconciliation Commission (TRC) institutional or sector hearings represented an innovative and unique attempt to gain insight into the societal context within which human rights abuses took place under apartheid:

How did so many people, working within so many influential sectors and institutions, react to what was happening around them? Did they know what was happening? If they did not know, or did not believe it was happening, from where did they derive their ignorance or their misunderstanding? Why is it only with hindsight that so many privileged members of society are able to see that what they lived through was a kind of madness and, for those at the receiving end of the system, a kind of hell? (TRC, 1998 Vol. 4, p. 1)

The sector hearings focused on key institutions in South African society – business, the faith community, the health sector, the legal system, the media, prisons – and raised profound questions about the nature of human rights abuse and complicity in such abuse. Answers to such questions, sought beyond the relationship between individuals and the state in societal structures and processes, institutions and professions, would in turn affect issues such as accountability, truth, responsibility, reparations, punishment, justice, reconciliation and more.

This paper is both a response to, and an off-shoot from, one of the above-mentioned hearings, the legal sector hearing. The purpose of the legal hearing was "not to establish individual responsibility for human rights violations but to understand the role the legal system played in contributing to the violation and/or protection of human rights and to identify institutional changes required to prevent those abuses which occurred from happening again" (TRC statement, 19 October 1997). Written and oral submissions to the hearings in October 1997, like much previous academic commentary, revealed the extent to which the legal profession, as well as its professional organisations, became complicit in the construction and implementation of apartheid. In the words of one written submission to the TRC: "Any examination of the role of law in our society in the last thirty years must start from the recognition that law was the primary tool used to give effect to apartheid" (Chaskalson et al., 1998, p. 22). The widespread, if always uneven, politicisation of justice had an enormously divisive effect on the legal profession internally and on its relationship with broader society. As a result, within the profession and between the legal profession and the society it served, there was a need for truth-telling and reconciliation.

At the time of the hearings and subsequently most commentary has focused on the fact that while a number of judges made written submissions to the TRC,1 none, past or present, white or black, appeared at the hearing, chiefly on the grounds that such moral accounting would compromise their independence (see Corbett 1998). Something of the incongruity of this stand is captured by the fact that judges were "prime movers in the conversion of law to the ends of violence and lawlessness" (Asmal, foreward to Dyzenhaus, 1998, p. ix), and, therefore, as Dyzenhaus claims: "One cannot easily argue that judges' independence will be compromised by asking them to account for their conduct when they are called to account because of conduct which compromised their independence" (1998, p. 54). By placing themselves above the process of truth-telling and reconciliation, judges indicated that they remained aloof from their public image. Further, they failed to appreciate that public respect for judicial independence must be earned rather than simply assumed - it is a goal and ideal to be gained rather than a reality in danger of being lost – in part through forms of accountability, acknowledgement and honest engagement with the past (see Dyzenhaus 1998).2 But judges were not the only significant constituency to be absent from the hearings.

While magistrates were frequently criticised at the legal sector hearing, their testimonies and views were almost completely absent. In a letter to the TRC the Magistrates Commission said that it could not decide whether participation in an investigation would be of any benefit as it was "without clarity" on the exact allegations and "which section of the legal system is accused" (SALJ, 115(1) 1998, p. 16).3 There was only one written submission by a magistrate to the TRC prior to the legal hearing, from Regional Court President of Pretoria, Graham Travers. At the hearing itself two relevant oral presentations were made by former magistrates or magistrates. A. P. Laka, a magistrate in KwaNdebele between 1984 and 1986, described his work as a magistrate in a former homeland, a story of political interference, personal resistance and ultimately dismissal and imprisonment. In his testimony, Moldenhauer, the serving Chief Magistrate in Pretoria, expressed impatience at the pace of reform; stated that old ideas and ways of doing things persisted, as illustrated by the refusal by the Magistrates' Commission to make a submission to the TRC, a refusal of which he was "ashamed"; and referred particularly to the need for changes in attitude.4

The participation of magistrates in the legal hearing, therefore, was minimal. This was a cause for concern because the majority of South Africans came into contact with the apartheid legal system primarily through magistrates. Magistrates have been described by Dyzenhaus as the "cutting edge" of the legal order - "the place where subject meets law" (1998, p. 33) – and as managers of an "apartheid enforcement machine" (p. 59). A participant in the legal hearings condemned the magistracy as "the coal face of the apartheid legal system at its worst" (Vincent). Due to the pivotal role of magistrates within the apartheid legal and political system, their silence was a major disappointment and frustration to participants in the legal sector hearing:

We have spoken a lot about the role of the judges … what we mustn't lose sight of, however, is the fact that most of our people's experience of the justice system was predominantly at a lower court level. We mustn't lose sight of the fact that some of the basic and fundamental violations of the rule of law actually occurred at a magistrate's court level where people were denied their rights to legal representation … where people were not treated with dignity … . They were the ones who prosecuted innumerable public violence offences. In many of those cases the attorneys who acted on behalf of those accused were as much on trial as the accused themselves, and we ask the question, why are they not here as well? (NADEL's oral submission to the TRC legal hearing)
The big gap really in today's proceedings has been the magistrates. They've been hearing hundreds of thousands of cases every year … and we haven't heard virtually a word. And we got a very, with respect, derisory comment from the Magistrates' Commission which merely turned the questions back to you … . So we've heard virtually nothing. (Professor Mason's oral submission to the TRC legal hearing)

Among the TRC's findings arising out of the legal hearings was the following:

The Commission deplores and regrets the almost complete failure of the magistracy to respond to the Commission's invitation, the more so considering the previous lack of formal independence of magistrates and their dismal record as servants of the apartheid state in the past. They and the country lost an opportunity to examine their role in the transition from oppression to democracy. (TRC, 1998 Vol. 4, p. 108)5

Before outlining the nature of this research project it is necessary to describe the work of a magistrate and the position they occupied within the apartheid legal and political order. Were magistrates indeed "the coal face of the apartheid legal system at its worst" and if so, why?

Magistrates under Apartheid

Magistrates were usually appointed from the ranks of the public service rather than the legal fraternity and were appointed by the Minister of Justice in terms of Section 9 of the Magistrates' Courts Act of 1944. The majority were former prosecutors from the Department of Justice.6 The existence of executive magistrates was incompatible with the doctrine of the separation of powers. Magistrates received directives from the Department of Justice.7 Further, the Public Service Act of 1957 contained provisions relating to the organisation and administration of the public service as a whole, including the regulation of conditions of service, periods of service, discipline, retirement, discharge and dismissal of magistrates. As a result of the above factors the independence of magistrates was severely compromised: magistrates could be transferred without their consent; were dependent on merit assessments for promotion and salary increases; and could face an inquiry by the executive into charges of inefficiency or misconduct (where misconduct included publicly commenting "to the prejudice of the administration of any department" and disobeying a lawful order).

The low status of magistrates within the legal profession was further entrenched by the fact that they performed both administrative and legal functions,8 often received an inferior legal training (civil service legal examinations), and were perceived by critics as significantly politicised.9 Nevertheless, or perhaps precisely for this reason, they came to enjoy wide powers and jurisdiction (by 1990, for example, magistrates in regional courts, which had greater jurisdiction than district courts, could try all offences except treason). Ellmann has written: "It is important not to overstate the general role of these judges [Supreme Court judiciary], for the bulk of political trials are actually heard not by the judges but by magistrates" (1992, p. 226).10 Magistrates performed further crucial functions in relation to political detainees, including taking down confession statements, overseeing the complaints and safeguard machinery, and presiding at inquests when custodial deaths occurred. It was on the complaints and safeguard component of magisterial duties that this study was initially focussed.

Magistrates (and latterly inspectors of detainees), alongside district surgeons, were charged with ensuring the well-being of detainees particularly from the late 1970s and early 1980s following high profile deaths in custody. In short, the main legislative provisions and regulations were as follows:

There is voluminous evidence that torture under apartheid was widespread and systematic. It is clear, therefore, that the complaints and safeguard system failed to protect detainees. Criticism of magistrates and the system over which they presided long precedes the TRC. Nevertheless, both oral and written submissions to the TRC's legal hearing are illustrative of the kinds of criticisms that have been made:

In my experience I did not know of any magistrate who supposedly visited detainees as required then and who assisted detainees and made reports of any torture or maltreatment or assault whatsoever. (Jana, oral testimony to the TRC legal hearing)
There is also the question of visits by magistrates to prisoners and detainees … all I can say in this regard … is that I'm unaware that there was any regular visiting by magistrates or if there was that it ever produced any tangible results. (Bozalek, oral testimony to TRC legal hearing)
How diligently did magistrates perform this duty, the neglect of which could have tragic consequences? There is evidence that visits were not carried out with the required regularity … . Where visits were compulsory, there is little evidence of independent, effective visits. To the contrary, detainees have reported cursory, superficial visits and interviews. There are many clear indications that magistrates' visits to detainees provided little or no protection against abuse by the police … (NADEL's written submission, SALJ 115 (1) 1998, p. 92)12

Detainees were totally cut off from family, friends, their lawyers and private doctors. In this context the responsibility on magistrates was immense: they were one of the very few outlets detainees had to non-custodial personnel. But magistrates ultimately were part of the world of the state and custodial authorities and this rendered their position compromised, and the safeguard system over which they presided inherently flawed (as will be argued in detail later in this paper). This situation of dual obligations is crucial to understanding the attitudes and conduct of magistrates.

Magistrates were state employees and, insofar as they ministered to the needs of detainees and prisoners, they worked within state-controlled institutions alongside other state employees, guardians of the state, such as the security police. As such, when assigned responsibility for overseeing the complaints and safeguard system for detainees they faced the challenge of dual obligations, on the one hand to their employer and colleagues and on the other to the detainee whose well-being they were charged with ensuring. In this context, the system of custodial supervision was designed to fail because magistrates were deliberately placed in an invidious position, they were asked to monitor the activities of the state and its employees and report against them and to safeguard its enemies. They were asked, in essence, to bite the hand that fed them.

The Research Question

Research on magistrates is needed because of the lack of relevant research and the non-participation of magistrates in the TRC process coupled with the crucial role they played both within the apartheid legal and political system and within the new dispensation. Magistrates' own understanding of their responsibilities and actions in relation to detainees, as with all other facets of their work, remains unknown. The TRC began a process of truth recovery and reconciliation, but both remain unfinished tasks, generally and more specifically in relation to the legal sector. One of the undervalued contributions of the commission has been precisely to identify and highlight work that remains to be done. The commission itself stated that it hoped that the legacy of these hearings "will be to stimulate further debate, further discussion and further exploration of the difficult and complex issues that underpinned apartheid" (TRC, 1998 Vol. 4, p. 3). Dyzenhaus has made much the same point:

The archive is an invitation to do better; indeed, in understanding the flaws of any particular hearing, one gets a sense of how to continue the work of elaborating the archive. One can opt to treat the trauma of the past, and the problems in retelling it, as a promise. (1998, p. 179)

This paper in a small way seeks to engage with that promise. Its central aim was initially to complement and go beyond the work of the TRC by addressing the following research question: how did magistrates experience and perceive their work overseeing the complaints and safeguard machinery for those in detention? Further subsidiary questions included: in what ways did magistrates experience political interference or feel professionally compromised in their interactions with those held in detention and how did they respond to such situations? and, how did magistrates deal with their dual obligations? This was essentially, therefore, devised as a study of legal professional ethics in the context of a politicised system of justice, through a case study of the supervisory work executive magistrates were required to do with apartheid's detainees. It sought to answer the fundamental question: how did legal officers, in this case magistrates, become complicit in torture, ill-treatment and a range of other human rights abuses?

The research project has, however, extended beyond this initial area of concern to include other aspects of magistrates' interaction with detainees - such as the taking of confession-statements - some more general analyses of their structural position and approach (for example, observations on the relationship between law and justice), and an assessment of the ongoing process of transformation affecting the magistracy. The research expanded in this way due to pressure from magistrates and others to address the past and present, and the linkages between the two. It also enables the study to engage more fully with the remit of the TRC's legal sector hearing ("to understand the role the legal system played in contributing to the violation and/or protection of human rights and to identify institutional changes required to prevent those abuses which occurred from happening again" (italics added). A separate report has been written on the ongoing transformation of the magistracy (Kgalema and Gready 2000).13

Methodology

The main source of information for this study was primary interviews with magistrates. The interviews took place in Gauteng during August and September 1999. In all, 24 magistrates were interviewed, of whom four were African and four female. Most of the interviewees were white, Afrikaner men. Thirteen other interviews were conducted with key informants (see Appendix 1 – these are distinguished in the text by dates accompanying quotations). These included personnel from the Justice College, the Law, Race and Gender Unit at the University of Cape Town, legal institutions like the Bar Council and Black Lawyers Association, as well as opposition lawyers, former employees of the Department of Justice, and human rights activists from non-governmental organisations and parliament. Key informants were advised that information would be attributed to them by name in our research products (the only exception being that pseudonyms have been used for two key informants at their request: Claassen and Du Plessis). All of the interviews were face-to-face and conducted by one or both of Paul Gready and Lazarus Kgalema. Interviews were in-depth and semi-structured. They were transcribed and analysed using qualitative methods, with an emphasis on dominant themes and arguments.

Magistrates perceive themselves to some extent to be a professional group under siege, criticised for the past and subject to reform in the present. In this context, it was thought probable that some, possibly many, would refuse to take part in the research project. For this reason a combination of convenience and snowballing sampling methods were preferred. Convenience sampling operates through networks of personal contacts, publicly available information (for example, in telephone directories) and contact lists or directories. Snowballing is a related technique whereby key informants or magistrates passed on details of, or facilitated interviews with, other magistrates. The magistrates interviewed were all working or had worked most recently in urban settings. Although several brought rural experience to the study, magistrates currently serving in rural areas were clearly under-represented. Insight into magisterial experiences in apartheid's homelands was also limited. A further, related bias within the sampling is that only four African magistrates were interviewed - also no coloured or Indian magistrates were part of the study. With reference to gender, the sample numbers are probably not unrepresentative of the ratio of male to female magistrates in the past, but are likely to under-represent women in the present. The study, therefore, while providing insights of more general relevance, reflects most accurately the reality of what was 'white', urban South Africa.

Informed consent was obtained from all interviewees. Magistrates were guaranteed confidentiality and that their anonymity would be preserved in all publications to encourage them to participate in the study. Another reason for adopting this approach was the intention not to identify specific instances of malpractice or to apportion blame to individual magistrates, but rather to identify structures and processes that brought about the politicisation of the legal system and widespread complicity in human rights abuses. A related point is that the aim of the study is not to demonise magistrates, individually or collectively, but rather to contextualise and try to understand their behaviour within a continuum of legal practice. The names of magistrates cited in the study are therefore pseudonyms, but names have been chosen to indicate the race of the magistrate referred to. The use of pseudonyms allows the contributions of particular individuals to be traced through the study while preserving their anonymity.

In fact very few magistrates refused to speak to us outright. Several magistrates asked to be faxed the interview questions in advance and prior to agreeing to be interviewed. One would not allow the researchers to tape record the interview. The study was sanctioned by the Magistrates' Commission and several magistrates betrayed both a reluctance to participate in the study and/or a residual hierarchical mindset in their insistence that the study be approved not only by the Magistrates' Commission but also by more senior magistrates in their area. Interviews were sometimes difficult encounters, with magistrates remaining wary and deploying various strategies to contain the scope of the interview. In essence, while most agreed to talk, many did their utmost not to say anything of note. One magistrate, Louw, on several occasions refused to answer questions (when asked whether he thought that in the past dispensation torture was widespread he responded, "I decline to comment on that", and when asked if there were laws the implementation of which morally troubled him, he stated, "No, lets leave that"). Magistrates also claimed not to have presided in cases where unjust laws might have led to moral unease and/or had recall difficulties. In response to a question about whether he could remember if he received any complaints of torture, Louw replied: "Not that I can recall … there must, there could have been, but not that I can recall at this moment."

The remainder of this report presents a discussion and analysis of certain facets of the work of magistrates under apartheid, based largely on interviews with magistrates themselves.

Background about Magistrates

Why a Magistrate?

Magistrates articulated many different and sometimes conflicting reasons for their choice of profession. For a few interviewees it appeared to be a matter of chance and accident: "it just so happened, you know, I joined the civil service … in the Department of Justice you progressed until you eventually became a magistrate" (Smit). The vast majority of interviewees, however, were able to isolate at least one factor contributing to their career choice. One such factor was family background, either in public service or the law. Liebenberg ascribed his decision to study law to "my childhood I suppose … my father was a policeman. It's a, um, a continuation of, yes, it's a certain field of [pause] growing up." Van Zyl described her father as "also a government worker" while another magistrate had been advised in his choice of career by a brother who was an attorney (Muller). A further subset of magistrates had felt that it was a profession that brought with it status and societal standing. "You know [pause], as I've said many a time … as a child … I thought to myself … magistrate, that's a very important person. I would like to be a magistrate myself one day". This quote is from Smit who talked later in the interview of fulfilling a childhood dream.

A rather greater number of magistrates asserted that an interest in the law and/or the job of magistrate had influenced their career path (Liebenberg, Van Rooyen, Van der Walt, Van Zyl). Sometimes this interest came from having worked within the court system (Mulaudzi), sometimes it was generated by a variety of factors:

I used to see some magistrates … in the area where I was staying … I used to go to court just to listen … to develop an interest. And decided that I was also taking part in a certain drama which was called 'At Last Musical Play'. I acted as a magistrate in that drama. (Mashudu)

An observation by Prinsloo is also worth quoting as it reveals that his reason for becoming a lawyer was driven by interest, but a profoundly apolitical interest:

it was just something that interests me … nothing … that stands out, that you want to do or … a statement that you want to make. Why some people study law to say that there's a way of life that he can further, for instance, political agenda, human rights … It's just something I want to do … a general career choice that you want to make.

Terreblanche believed that the law was a means of securing justice: "I believe in the law system of South Africa … . Yes, [I] always [did]. And I always thought I could make a difference, and I think in my daily life I did try."

For a further significant group of older magistrates, employment in the public service was clearly a route out of poverty and a way of obtaining a higher education:

during the depression years, say 1935, just before the war, 1939 … money wasn't always readily available so a lot of chaps joined the public service. Their fathers couldn't afford to send them to university … . So they joined the public service and through that they studied law … took law exams … I was one of those. (Cartwright)

For those who had grown up in a small town, poverty was accompanied by the absence of employment options. After stating that "[t]here was no money for me to go to university", Neet, a former Director-General, Justice, continued: "At the time when I left school, work was scarce … and in a small town … you had very few options. Either go to the bank or go into the government service, or go into the farms … . My father didn't have a farm, so I joined the public service" (28/9/99). Similarly, Viljoen emphasised the need to find a job because of rural poverty before stating, "No, I don't think there was any other option … . There was no place to start working at. When I approached the magistrate and said, 'do you have a job for me', he said, 'come on the 18th, I'll take you'". Any desire for a legal career was framed by the horizons of this rural world:

if you're born in a small town, that time there was no television and you saw a newspaper perhaps over the weekend … . And, you look at what can you do. And I felt [pause] the magistrate's office had some, um, I think its also my religious upbringing, something of justice in me. My father was a really person for justice. He treated everybody fairly and I think it was part of my education. And, um, I felt a longing to become involved in the law. I remember when we had our matric farewell, we were only twenty four. They said there's going to be a lawyer here. You know, but I only know the Magistrate's Court. (Neet 28/9/99)

Two other magistrates, Kruger and Mashudu, mentioned the availability of state bursaries for studying as a reason for joining the Department of Justice. The need to repay such bursaries often tied people to public sector employment and instilled a culture of loyalty. A further financial reason for becoming a magistrate according to one interviewee was that the state was the only employer that paid its employees while they were doing their military service: "So I grew up on a farm and I went to the nearest town and I decided that I will go … to the magistrate's office, to the railways, to the post office, and see whether I can get a job in the state … so that I can get paid for the 9 months. The first office that I walk into was the magistrate's office, and they offered me a job. And here I'm still today" (Louw).14

Education and Training

The main legal qualifications obtained by magistrates and mentioned in interviews were the Diploma Juris, B Juris and, more rarely, a BA in law or an LLB. White magistrates had studied almost exclusively at former Afrikaans universities – the University of Pretoria, University of the Free State, Potchefstrom University, Rand Afrikaans University, and in the majority of cases UNISA. A common educational pattern was for such magistrates to start working with the Department of Justice after matric and then to study part-time, and/or with a bursary from the state, while in the employment of the Department of Justice. There were variations from these educational patterns. One magistrate, Mills, had studied at the University of the Witwatersrand; Terreblanche had a degree in drama and also obtained a teaching qualification before returning to university to study law; Muller, attached considerable significance to the fact that he had a first degree in the behavioural sciences from the University of Pretoria: "Which I think is important for any magistrate to have … you are dealing with people on a daily basis." Some of the black magistrates had similar legal education histories to their white counterparts. Others had studied at universities in the former homelands, such as the University of Zululand (Mashudu, Malaudzi). Magistrates also received training at Justice College (along with interpreters, prosecutors and others).15 Educational qualifications were linked to promotion.

Two further comments are worth making on the legal education of magistrates. Firstly, what little comment there was on the style of legal education indicated that as with legal education in South Africa more generally it was positivist in nature. A lecturer at the Justice College described the approach at the college prior to 1994 as: "very formalist … very acontextual … we were not supposed to be empathetic, you were supposed to be an objective, independent magistrate" (Du Plessis). This former magistrate and one other also stressed the importance of informal education and training by peers, more senior magistrates. Du Plessis stated, "as a prosecutor in a very small office, my magistrate was my only guidance", indicating that in this way the legal system perpetuated a postitivist legal culture. Van der Walt claimed that it was at the informal level that the "proper … practical" training of magistrates took place:

But I must say that most of the proper training … practical training … for magistrates [is] done by other magistrates. When you are a young magistrate, or an attorney or a prosecutor, and you appear before a magistrate you look … you basically see what they do and how they … give judgements and how they behave themselves basically.

Training for the work that magistrates did visiting detainees and prisoners appears to have been similarly informal. In relation to briefing or preparation for visiting detainees, Muller stated, "well, yes, the Chief Magistrate basically did train me." A similar process appears to have operated with regards to visiting criminal prisoners: "No it was not, we didn't have, um, formal training. It was discussions we [she and the former Chief Magistrate] had." (Van Zyl). This ad hoc approach to training was obviously susceptible to the perpetuation of bad practice and prejudice. Other magistrates felt isolated and that any education had to be self-education. Commenting on the taking of statements and visits, one interviewee stated, "um, I had to learn myself" (Kruger), while another remarked: "No. No training, no briefing, no". He went on to say that he felt there should have been training, "I think they got to train you how to deal with these people [in prison], and how to confront them … [pause] because most people, they don't know how to …" (Van Rooyen). When asked what he meant by "confront" the magistrate's response was "speak to".

Clearly there is a need for the training of magistrates to go beyond both positivism and the ad hoc reliance on peer guidance and self-education. As will be discussed later in the section on 'Law and Justice' a key requirement is training that will enable magistrates to subject the law to critical analysis and interpretation.

Professional Histories

The typical career path for white magistrates progressed from clerk to prosecutor to magistrate. This quote is emblematic: "first I was a clerk in the department and worked myself up until I become a magistrate" (Louw). Black magistrates followed a similar career progression, but with the post of court interpreter often as an extra rung in the professional ladder. Another important facet of the professional hierarchy was the distinction between district and regional courts. Often magistrates had started working for the government straight from school and completed all their legal qualifications while working for the Department of Justice. Such a professional history was obviously instrumental in forging a strong professional culture.

It should also be noted that a number of interviewees indicated that the stages of promotion were not simply linear. One magistrate's career history read as follows: (district court) prosecutor, district magistrate, regional court prosecutor, district magistrate, regional magistrate (Prinsloo). Another stated, "after I had been promoted to the bench, I did a little prosecuting" (Smit). As this citation indicates, there was often a blurring of the distinction between and/or an overly close relationship between prosecutors and magistrates, particularly in rural areas, which undermined magisterial independence. Three interviewees had studied law prior to joining the Department of Justice and as a result joined at the level of prosecutor (Eloff, Ramokoebo, Mills). Only one magistrate had been an advocate prior to becoming a magistrate (Nel). Finally, a number of those interviewed had worked in other professions before joining the Department of Justice, including working for the state in other capacities (Muller, Wiehahn, Mulaudzi, Van Zyl), employment as a farmer (Viljoen) and in acting (Terreblanche). Particularly among the younger magistrates there was some variety in background and a certain amount of experience of other worlds.

It is also important to register that racism pervaded the magistracy, profoundly affecting professional histories. By law up until 1985 only white people could hold the post of prosecutor and above in the state legal hierarchy:

I assumed duty there in 1969 as a court interpreter, mainly because I had a passion to be involved in legal practice … . But then it was made clear by the magistrates under whom I served as a court interpreter when they realised I was studying law through correspondence and they asked me why do I study law? What do I want to do with it? I said I wanted to be a magistrate and it was really made very clear to me there is no place for a black magistrate in this country. (Rasafarti, testimony to the TRC legal hearing)

It was official policy that no black person should be appointed in a position where s/he would be senior to a white person and black prosecutors/magistrates could not serve in courts where whites appeared. According to the Director-General of Justice in his submission to the TRC, racial distinctions for posts were abolished in 1985 but due to the application of merit criteria there was little change to the status quo. Excluding the former homelands, there were 7842 posts in the Department of Justice in 1991, of which 18% were occupied by African, Indian or Coloured people. There were 3 African magistrates and 41 African public prosecutors (pp. 61-5). Two quotations, one from an interviewee, the second from a written submission to the TRC's legal hearing, illustrate enduring problems concerning race:

we never liked the system, we wanted it changed. This was in 19… [pause] … 1990/91… I had the feeling that the person in charge at that time was an extremely racist sort of person. I had him investigated. He was then transferred. I re-organised the whole set up … I had a black prosecutor as well, who today is a magistrate. Um, many complaints, I received many complaints about him. Basically from white people. And I proceeded and I trained him to my satisfaction. And today he's a magistrate … the then Attorney General came to see me … and wanted to withdraw his powers as prosecutor. So I said 'no. Leave him to me. He's under pressure in a system which I do not like'. Today he is a magistrate. I feel I did something good there. (Muller)
I had also received reports of colour based promotion of personnel. Certain white prosecutors with less than 3 years experience were appointed as magistrates while persons of colour with 5-6 years experiences were not even considered for the posts. (Hendrickse)

What follows on from this section on background is a discussion of various aspects of the work of magistrates, beginning with their stewardship of the complaints and safeguard system for detainees.

A System Designed to Fail

And one has to understand that very often it was not the individuals working within the system who were the cause of the problems of the [pause] what's the word [pause] … abuses. The system was intended to have abuses. So when you say, we have the power to detain you forever and ever and ever. And you shall never have access to any independent person. Then that system will not have a flaw … . So you choose persons, such as a magistrate, who is not independent. Your system remains in tact. And, I think one has to look at it from that point of view. It's … not that the magistrates failed. The magistrates were never designed to succeed. Because if they wanted success, they wouldn't have sent magistrates … magistrates behaved exactly as expected. So the system carried on very successfully. (Satchwell, 25/8/99)

As already mentioned, magistrates presided over a safeguard system for detainees that was designed to fail. On the occasions when it worked, it did so as an exception to the norm, because individuals contested the dominant intention of the system they operated within. The main reason why the system failed was that it was a closed collaboration between the state and its officials and, therefore, deliberately, flawed in structure and design. Three main characteristics of the system illustrate this point:

1) magistrates were public servants and therefore their independence was inevitably compromised and questioned,

2) magistrates' reports circulated within the closed-off state world of government employees and departments and did not reach the outside world (for example, the detainees' lawyers or families), meaning that they went directly to the very people who were the cause of the complaints and abuse while not going to those who were a more likely source of protection and succour, and

3) magistrates lacked control over the environment in which they worked as they were denied, for example, freedom of access and often did not know what, if anything, happened in response to their reports.

This report will deal with these three points in more detail below.

Dual Obligations

Numerous individuals and studies have testified to the fact that, for detainees, magisterial independence was questioned or simply categorically rejected, with the result that magistrates and the system over which they presided were treated with distrust, suspicion and even contempt. This study, however, is mainly concerned with how magistrates themselves perceived and dealt with the dilemma of dual obligations and its consequences for independence in their work with detainees.16

When asked if they experienced the tension of dual obligations, the majority of magistrates answered with variations on the theme that they had not experienced problems. The following attempt by Van Zyl to normalise their role and relationship with detainees is typical:

No, I didn't. I just did my work normally … I acted normally as I would have acted towards you. This was a person … I was sent there to monitor what was being done to him. We had such a good relationship … I'm sure if something went wrong, he would have told me. We talked about everything … . We didn't only talk about his being held and all the grim things … . You know, we had a normal discussion.

Others provided answers suggesting that the behaviour and attitude of magistrates was individually rather than structurally determined. Fourie, for example, stated, "No. Myself, not really. But as I said, that will differ from person to person. That is regarding attitude". Ramokoebo asserted in a similar vein, "[w]ell it depends on individuals. You know, if you feel your allegiance to the state, some would conspire, some … wouldn't sleep with the conscience if they would conspire. So, um, I cannot say, that it was a general thing … . It would vary from individual to individual."

There were also dissenting views. When asked about dual obligations a magistrate who had worked in the homelands during apartheid stated: "Yes, it was a fact we were civil servants … we were not independent as we are now … when I say no, I say no. It was very difficult to say no then" (Mlambo). While there were other responses that acknowledged the compromised position of magistrates – when asked whether he felt a professional tension Van Rooyen replied "yes, yes, sometimes …" – this comment goes further by suggesting that such a position had significant practical implications.

Many interviewees appeared to struggle to conceptualise the dual obligations dilemma and did not see being employed by the state as necessarily a problem in relation to detainee supervision or viewed it as a structural compromise from which individual magistrates could detach and distance him/herself. The dominant self-perception was that they had had good relations with both the detaining authorities and the detainees and/or that they secured a position of impartiality between the two. Mlambo, for example, said: "Personally, I was not assisting the police [when visiting detainees]. I was doing my job … I think I was impartial … it would be wrong to associate myself with either the state or the detainee." But insight into dual obligations could also be gleaned from questions about magistrates' relations with and perceptions of the state and detainees and indeed from lines of questioning not specifically about the issue of dual obligations at all.

Relations with detainees

For many respondents their relationship with and reception by detainees was caste in a positive light, for example: "um, in a good spirit, there was no problems" (Van Rooyen) and "myself, they always trusted. I had no problems" (Muller). For others it was more a question of denying that they were treated with distrust and hostility:

Well, they respond courteously. I did not have any detainee that was really, you know, angry or emotional or anything like that. (Fourie)
Um, [pause] I never experienced any, um, what do you call it, antagonism, or anything like that … I never got the impression that, um, [pause] they don't want me there. (Louw)

Two magistrates even stated that they were on occasion specifically called on by detainees. Mlambo claimed that detainees were "never" suspicious or hostile towards him, and further, "in some instances, [they] even called upon [him] … [t]o come and visit" by asking the head of the prison to contact him. Another, similar claim was made by Fourie in the context of a prison disturbance just prior to the 1994 elections: "the detainees asked to see the magistrate … they refused to speak to anyone else … I think that is a good example of the feeling that there was … . And I was the only one, it seems to me, who could calm them down at that stage."

In contrast, several magistrates described a situation where it was necessary to overcome initial distrust and put detainees at ease. One, for example, stated "I agree [that you had to work at building trust] … . You have to work at it" (Muller). There were two main strategies outlined by interviewees as a means of achieving this end:

Magistrates also talked about normalising the relationship and humanising the detainee him/herself, in what was probably an attempt to overcome unease they felt. Cartwright stated "you looked at [the detainee] and you thought, well, he looks like a human being. I didn't think, what they've got against him … what evidence they've got" and when asked about his attitude if he had found somebody who had been tortured, he responded: "you're human … your humanity would have come into it. You would have forgotten about everything else … these people are human beings, and there to be treated like that." This approach could also involve distancing oneself from what a detainee had, or was alleged to have, done: "I didn't know why he was there … I wasn't interested. Um, but you knew he was a detainee" (Van Zyl). Magistrates, therefore, talked of trying to distance themselves from both the state and from certain aspects of the identity of detainees. The depoliticisation of detainees, while it may have allowed magistrates to do their job in a minimalist sense, reporting complaints, may also have constrained a broader agenda that would have seen detention itself as unjust and immoral.

Generally, there was a sense from the magistrates interviewed that any initial mistrust and suspicion on the part of detainees could be overcome. A related belief held by some interviewees was that they had developed a kind of understanding of detainees and an insight into their plight. Bekker, for example, stated "well I've been in court for a long time, so I could see if they were speaking freely" and "you would spend a minute asking how he is … so you could see he is fine". In a similar vein, Muller remarked: "Myself, they always trusted. I had no problems with that … that's why I mentioned I also have a degree in the [behavioural] sciences. I know people, and I know how to deal with them. I know their fears". Interestingly, however, Kruger acknowledged that attempts to build trust did not always succeed:

Yes [detainees were generally suspicious and hostile], especially the blacks, yes … . You know, you will [pause] um, when you go in … you, um, introduce yourself, and what I tried to do is sit with the chap next to me and, um, [pause] to talk to him first in a general way. And, um, many times you see that this person he doesn't trust you … . You know [he sees you as] a part of the government …
a person who is in that position [having been tortured] wouldn't speak very easily. And you are dependent on such a person, what information he is giving to you. Um [pause], many times if you visit the person he is in tears, he's crying. Then you try to calm him down and ask him what's the problem. And explain to him, I'm the magistrate. I'm not the policeman. I will not harm you … but you know, I think, um, many times, I mean, especially the blacks, they still not trust you. (Kruger)

A negative framing of relations and reactions was usually done through admissions that magistrates were seen as part of "the system": "yes, probably [they did] see us as part of the system" (Nel), while Prinsloo talked of being seen as "the enemy".

Relations with the security police and other state officials

Magistrates overwhelmingly described themselves as having good relations with other state officials. Comments such as the following were typical: "It was quite a good relationship we had with them" (Cartwright); "they were always, um, [pause] helpful" (Louw); "very much co-operative, I did not encounter problems" (Mashudu); "um, it was sufficient. It was sufficient … obviously as time progressed … you got to know them as well … . It was a working relationship" (Bekker).

But magistrates also reacted against the perception, common among detainees and opponents of the apartheid government, that they were simply part of 'the system'. Two quotations from key informants illustrate this perception. Jack Moloi, President of the Black Lawyers' Association, stated that "magistrates saw themselves … as extensions of the government" (24/8/99) while the human rights campaigner, Max Coleman, commented: "But of course they were government employees … their livelihood depended upon the relationship with their employers" (1/9/99). The strongest retort to this view of magistrates came from Bekker who said, "the general impression that magistrates were in cahoots with the security police … and with the politicians of the day … that is nonsense." While the relationship with the officials of the state was described as "good", "co-operative" and "professional", several interviewees stressed that it did not extend to being friends (Muller, Kruger, Bekker).

Interesting, and rather different, reflections on interactions with the police, include this observation about social ties which appears to contradict the above assertion:

in our office … we decided … it was not in the best interest of justice that we have these ties with the police. So we start[ed] to break formal social ties with them. We don't attend any more of their social functions … we sever[ed] our ties with them on the social basis. (Nel)

This magistrate went on to agree that previously the relationship between magistrates and the police had been close: "Yes … we used their canteen and we used their facilities … . But that was normal in the whole of South Africa." Clearly such social ties would have had implications for magisterial independence. Other illuminating observations about relations with state officials shed light on expectations of and responses to the way in which magistrates managed the safeguard system:

If a magistrate, at that stage, did his job properly, he was not popular at the police. My experience is that if a magistrate was popular amongst the police, then there was something wrong. (Kruger)
you could add your dissatisfaction. But then, again, there was frustration because it was not expected of you to do so … it was most definitely not [a popular thing to do]. (Muller)

Although relations with detainees and with other state employees were generally described in a positive light, enough insights could be gleaned into the contradictions and difficulties faced by magistrates to see that dual obligations and the compromised independence of magistrates were, however unconsciously, profoundly problematic in this context, and indeed the root cause of many of the other ills within the complaints and safeguard system. One concern, which will be returned to in more general terms later, is the narrow, distorted way in which a concept like independence is understood by magistrates. It often appears as a claim and self-description without substance. A related issue to that of dual obligations was that the reporting process was also flawed in structure and design, similarly part of a system designed to fail.

The Reporting Process
the detainee made no complaint to the magistrate … the detainee, with absolute justification, would say … . 'What was the point … I know darn well magistrates aren't independent. The magistrate would have told the police and they would have come back and beaten me up some more, for making a complaint.' Alternatively, 'I just didn't think there was any point' … . You would make the complaints ranging from protest at being there … through to protest about the conditions such as dreadful food, dirty blankets. And the magistrate's attitude was very much, there's nothing I can do about any of that. Firstly, on the one hand, that's the law, and secondly, on the other hand, I don't run police stations or police cells … . So in that sense magistrate's visits I think achieved absolutely nothing … [they were] meaningless. (Satchwell, 25/8/99)
Here again they were not in an environment that was conducive to the detainee making his complaint … they would go back into detention after having this interplay with the magistrate. And, um, they had been warned. I mean, it comes up repeatedly, they were warned by their interrogators that any word out of place and they would increase the pressure on them. So they were really highly intimidated. (M. Coleman, 1/9/99)

Claims made about the kinds of information documented in reports varied from the cursory - "And you ask him whether he's got any complaints … if he said yes, you note it down, if he said no, you also note it down, no complaints … that's all you had to …" (Van Rooyen) – to the rather more comprehensive:

I always filed a report, um, on what I saw, what I heard, what the person in the cells … told me. How he looked … whether there's something out of the ordinary that you've encountered … there was a list of issues that you would ask him about. About his health about, um, the food that he gets … I normally also reported what the interpreter told me. (Van der Walt)
You ask if he has any complaints. You look at the cell that he's kept in. You must satisfy yourself that … sanitation is clean … . You also specifically … must look at if there was any assault on him. (Muller)

Claims that reports were filed were made in both a specific, personal sense and more generally. In the former category Bekker stated "I certainly would have reported anything that I found that was wrong [and] it's my view that my colleagues would have done the same" and Van Rooyen, "I never turned a blind eye. I mean if I found a person that's tortured, then I will immediately report it." In the latter, more general, category of response were Van Zyl's "I know that there's stacks and stacks of reports at head office", Bekker's "but I'm sure that … [torture] was reported, that's just how the system was", and, finally, Neet: "magistrates did definitely report … I saw some of those reports … the complaints … torture … definitely these were sent" (28/9/99).

From the responses of magistrates it is clear that copies of their report went to all or some of the following: the Station Commander or Head of the Prison where the detainee was held, the Commissioners of Police and Prisons, the Department of Justice, and even relevant Ministers. Jasper Neet, a former Director-General, Justice, stated that reports filed by magistrates went to the Internal Security Division of the Department of Justice (28/9/99).17 In relation to police stations, interviewees made reference to "a register" in which requests and the report for the more senior officials at the police station were recorded (Kruger); to an "investigation diary" that was left in the detainees file (Louw); while Van Zyl talked of writing requests/complaints "in a book at the police station". Three magistrates stated that the magistrate and/or the Chief Magistrate's office kept a copy of the report on file (Fourie, Van der Walt, Prinsloo). All recipients of the reports, therefore, were state employees. Although some magistrates claimed that reports did or could circumvent the police,18 other interviewees questioned this and testified to the fact that the closed nature of the system rendered it ineffective:

Those magistrates who did take down the statement [pause] do with it what they were meant to do. Which is, they would give it to the persons responsible for the custody of the detainee, who were usually the very people against whom the complaint was made. I don't actually know of any magistrates who would say something like, 'I'm taking the statement, I will not give to those against whom you're making the complaint, I will take it elsewhere'. And I suppose in the magistrate's defense, it's difficult to think of where else they would take it … . There wasn't much room for maneuver … the legislation said … that no person shall release any information concerning the detainee … [if information was revealed to the detainee's family or lawyer] they'd loose their job and they could, in theory, be prosecuted … . So as I say, I don't know of a magistrate ever doing anything useful. (Satchwell, 25/8/99)19

A crucial question is where the locus of decision-making and intervention resided within this complex reporting system and circulation of paper. There were claims that magistrates had some success facilitation action on issues that could be dealt with on the spot. Bekker, for example, stated generally "if there [were] any complaints, um [pause], that was always attended to immediately" and more specifically: "sometimes the police were just a bit nasty, they would give them a bible in a language they didn't understand" but that he would insist that detainees had a bible in an appropriate language "and the next day, at the most, they would have it":

One thing that sticks in my mind is the one chap said to me please can't I get him a Coca Cola. I said, 'you must be mad' … . He said, 'you don't know what I'm asking … I sit here day and night I can't sleep. I'm thinking about a Coca Cola. All I need is a Coca Cola'. I went out and I said right there, 'give him a Coca Cola'. And they gave him a Coke before I left. (Bekker)

Similarly Van Zyl talked of complaints "immediately remedied" at a local level, Kruger of the police "many times … [adhering] to your request," and Muller of persistence being required, "and then it was done."

But clearly major decisions would have been made higher up the state hierarchy. The Director-General of Justice submission to the TRC stated that complaints were followed up by the Internal Security Branch/Directorate of Security Legislation and Attorneys-General, while in an interview for this study Neet, one of the authors of the above submission, confirmed that reports were submitted to the Internal Security Branch but also said both that the Commissioners (of Police and Prisons) investigated and acted on complaints and that it was the role of the Minister of Justice to give directions or delegate the task to the Commissioners (28/9/99).20 Extraordinarily, for someone who had occupied his position and worked for many years within the Department of Justice, even he claimed to be unclear about how the reporting and complaints system worked or, indeed, failed to work. De Bruin, a former Director of Security Legislation stated at the TRC legal hearing that less than 5% of complaints were investigated further and prosecuted. When asked if there were there many complaints of assault, he replied "quite a lot". When asked whether he was aware of any investigation within the department because of reports submitted of assaults, he replied "no". It appears that within the state labyrinth any drive towards addressing complaints and safeguarding detainees was lost.

The magistrate says … 'I was to listen to the detainee, take hold of his complaints. I did that and I sent it to the authorities in charge. But I couldn't rectify it because I wasn't in charge of the jail, I wasn't in charge of the police cells' … I think they've got a valid complaint. Enough wasn't done … . But at the end of the day, I think if you go deeper into the system … you'll find that the political system, somewhere [pause] the thing stopped … it went to the Minister … but he signed the order that this person should be detained and now the person … complained and everybody told them how difficult this person was … he's complaining about nothing … I think that's the sort of argument. (Neet, 28/9/99)

The central problems with the reporting system, therefore, were:

a) that it was restricted to officers of the state,

b) that reports went to the custodial authorities who were often the very people against whom the complaint was made, the source of the problem rather than any potential solution, and from whose custody detainees came and would return, and

c) that complaints invariably failed to initiate any action to remedy grievances or alleviate suffering as somewhere in the political system "the thing stopped".

These structural flaws in the complaints and safeguard system, and the resulting detainee mistrust and lack of openness, provide a rather different insight into the relationship between magistrates and detainees to that cited earlier which claimed that relations were good and that such obstacles could be overcome.

While some magistrates acknowledged that they received few complaints, or the same, trivial issues kept being raised, one group interpreted this as an indication of lingering mistrust, implicitly acknowledging that the system of magisterial visits could not adequately protect detainees, while another took the comments at face value as providing the detention system with a clean bill of health. Comments in the former category included these observations by Fourie and Cartwright respectively:

I had received complaints … . But one must also remember that those detainees were in custody and they did not trust anyone … . No-one can blame them for that. So, um, I don't want to … say, yes they complained to me because I'm a magistrate. I know they did not lodge all their complaints … we very prominently always asked them did anybody assault you, and things like that. But … one must be a fool not to realise that they would not openly speak to you.
They just sort of closed up … I always got the impression that they regarded you as sort of, um … lackeys of the government … they weren't going to tell you anything in detail … 99% of them never had any complaints. If there were complaints, it was really just about the food … afterwards … I met [a former detainee] and he said, well, they just took up the attitude, we're not going to tell these people … anything … no use complaining … they won't take the matter any further … that was the attitude they adopted. That it was not going to be particularly helpful.

Cartwright also stated: "No as I say, they never complained about any torture or any … . Those that I saw, never complained about anything." Mashudu concurred: "the types of complaints I used to receive were more or less the same … and listen to what is being mentioned in the Commission [TRC]. One can tend to believe that a lot of things were being done, and such things were not mentioned to magistrates."

Other respondents were rather less perceptive about the kinds of responses they received from detainees. Prinsloo, for example, stated, "[b]ut they had no grievances, no complaints, um [pause], as far as I can remember, the didn't want anything" while Bekker claimed with regards to complaints against the police, "I never had such a complaint", that he saw "dozens" of detainees and "not one" complained of ill-treatment, and that he never came across anything he thought was torture ("I may have been fortunate"). Furthermore, he commented:

I never had any problems that I really needed attended to. But there's always small things that the people want. Sometimes they wanted reading material … and the only thing they were allowed was a Bible … I must stress that I never, not once during the time I visited detainees did I have any complaint of, that really required specific attention. We were always very careful to check on assaults. (Bekker)21

As the remarks above illustrate, magistrates, conveying varying degrees of understanding, were often very candid about the fact that detainees did not usually complain to them about torture. None of the detainees Van Rooyen visited, for example, had complained of torture, while Muller stated, "perhaps the person, or the detainee, not perhaps, most definitely, would be afraid to tell you [about torture], they never told me in any event if that happened".

Not only do these comments cast the relationship between magistrates and detainees in a rather different, less positive, light, indicating that it is perhaps best understood through answers to less direct lines of questioning, but they also indicate that the safeguard system and detainee attitudes to it rendered even conscientious magistrates powerless to fulfil their mandate and effect change. Louw commented: "That might be the case [that detainees were less than totally open], not that I experienced it. You know, that sense that … . But, if they want to withhold something from you, well [pause] I can't force them to tell me anything."

How would the magistrate know what's in the mind of a person if he is not expressing himself … [pause], perhaps there's a good reason for that, he kept quiet [pause] because he, perhaps he was afraid to go back to be under the supervision of the police again. To be taken in detention [pause] … . But I think the problem was that [long pause] … blacks and whites, they didn't trust each other. [pause] And, if you haven't got a proper conversation with the person … you won't know what's he thinking and what's going on in his mind. (Kruger)

The sense of powerlessness came from both directions, from the detainee who would not confide in the magistrates and also from the state and its officials who conspired to render the safeguard and complaints system ineffectual:

what I have experienced, is tension in the sense that we know some things were wrong and you were unable to change that. (Fourie)
you had this feeling that something is wrong. Something is wrong that you can't do anything about … it was very frustrating. (Muller)
as a magistrate, you haven't got the power or the authority to, to improve anything. You can only put your request. (Kruger)
Some judicial officers did take steps after certain discoveries made during visits to prisoners and detainees. However such steps were frustrated mostly because reports emerging therefrom had to be submitted to the very perpetrators against human rights. (Submission by the JOASA to the TRC, p. 8)

After admitting that some detainees probably had been tortured, Van Rooyen was asked how it made him feel to preside over an ineffective protection mechanism "it makes me … feel that you couldn't have reached these people. My hands were tied, basically." He felt magistrates were not in position to do what they had been supposedly tasked to do - "Yes … our powers were not sufficient" – but that there were no other options available to magistrates other than that of reporting.

It is important to remember, however, that it was the detainee who was really the one rendered powerless by the failure of the safeguard system:

I showed you the injury to my eye when you visited me last week, I also told you of the injury to my ear. I requested that you bring this to the attention of a judge and you said you were not in a position to do so. You said you could only report to the Director of Security Legislation. I find myself in a helpless position in the hands of the police. (Billy Nair in a statement made to a magistrate, cited in NADEL's oral submission to the TRC's legal hearing)

It is impossible not to conclude that the reporting system generated an enormous amount of paper but little in the way of action. The closed system, the exchanged of information that blurred distinctions between protectors and perpetrators, and the absence of detainee trust in the system and its operators, meant that this crucial aspect of the safeguard system was designed to fail. The final facet of the flawed structure of the safeguard and complaints system is again related the previous two and stems from the fact that magistrates did not control the environment in which they worked.

Lack of Control and a Context of Unknowing

A lack of control over the custodial situation in which detainees were held manifested itself most obviously in magistrates operating in a context of not knowing. In a range of areas, of which this study will concentrate on access and the reporting procedure, magistrates did not know what they needed to know in order to be effective.

Access to Detainees

On the question of access, magistrates did not know who was detained or where they were held unless or until the authorities informed them. Detainees were usually visited in police cells to which access was mediated by police and security police personnel. Max Coleman talked of access "under controlled conditions … the interrogators didn't like that [visits by magistrates and district surgeons] to take place. In other words they controlled the times and the access … . It wasn't free access at all. That was the problem" (1/9/99). Information about detainees appears to have come to magistrates in a variety of different ways, including directly from the head of the prison (Mlambo), police station (Van Rooyen), or from the security police (Bekker) as well as filtered through the Department of Justice (Bekker) and the Chief Magistrate's office (Cartwright, Louw). The safeguard system was therefore dependent on the free exchange of information between and good faith of a range of state officials working for the police and the Department of Justice. It emerged during interviews that while a few magistrates had thought through the potential implications of this scenario, the possibility that detainees were hidden from them was something that had not occurred to some (Mlambo) while others, were reluctant to countenance it as a possibility.

Of the interviewees it was Bekker who asserted most vociferously that magistrates enjoyed free access to detainees. He stated, "yes, always, not once was there the slightest possibility of interference" and, more generally: "I heard allegations that there was direct political interference, indirect political interference. And what I'm saying to you there was none." Some laid claim to freedom of access as a right: "Yes … there was actually no [pause] way that they can … withhold you to go in a, um, the right to go in a certain area. They must take you there … its your duty to go and visit each and every person in the prison" (Prinsloo). Other interviewees acknowledged that interference did occur and that access was sometimes obstructed.

Some interpreted difficulties in gaining access in a benign fashion: "sometimes, it might happen that you came there and the detainee is not even there, he's out on investigation, or something, and you will have to go back again" (Louw). Others took a different view. Kruger, for example, stated that magistrates did have free access to detainees but also made two comments which significantly qualified this assertion: "Most of the time it was difficult to get access, you know, you have to approach the Station Commander first. And then he must get somebody to accompany you to the cells …" and, "sometimes you found that they informed you … that the detainee is with the investigating officer, or the security police, he's not available … I recorded it … Sometimes [I suspected foul play]. Sometimes you got [that] impression." These comments were echoed by Van Rooyen:

it was very difficult to, um, visit these people because I think, the police … they don't want you to contact them actually and speak freely … they made it difficult for you. You had to find them and ask them … they [were] not ready for you, and they said you must wait and come back later, and [pause] not all of the time, but sometimes.

When asked whether he had a sense that the custodial authorities felt he was interfering, Van Rooyen replied, "Yes." These magistrates thus appear not to have believed unquestioningly in the good faith of the police.

The most concrete allegation made in relation to obstructed access, was the claim made separately by two black magistrates that those detainees who made complaints were moved. Mashudu, a magistrate who had worked in the former homeland of Venda, testified: "It was not easy in my case to make a follow up, because … I will see that person once. The next moment when I go there … I don't find him at the very same police station." When asked whether he felt this frustrated him from fulfilling his mandate, he continued, "Yes, of course. Because I did not know whether the complaints which I wrote down, the police tried to help them or not … last time you mentioned this and this to me, did they attend to it?" Ramokoebo also reported similar problems, not from his own experience but from that of friends detained:

they told us when they came back, that once you make a complaint, it gets out to the authorities. The next morning the security police were there. Then you will be moved to another police station, where you wouldn't be given a chance to see a magistrate … the complaints couldn't have been followed up because if you made a complaint you were moved …

Finally, magistrates also admitted that they simply did not know if they had access to detainees. Van Rooyen acknowledged that they wouldn't have known people were detained if the head of the police station hadn't told them. Cartwright went further to imply that detainees were kept from magistrates:

I don't know if they always let us know about everybody that had to be visited. Because … there were, I think, hundreds of people being held in detention … I don't think we saw more than about 8 or 9 on one particular day. And they were holding very many more people.

Perhaps the most intriguing commentary on this issue was provided by Bekker who was clearly aware of what would have needed to happen for the system to fail but retained a reluctance to believe that this could have occurred in reality:

For that system to fail … you would have, first of all, required not to have known about the person. Now to my mind, there was ample provisions that you knew about who was detained. It would have required the very high ranking people in the security police, and in the police force itself, to try and hide the detention from the magistrate.

If this had occurred he conceded, "[o]bviously if that was hidden from you, you could not visit the person. You wouldn't even know about his existence", and also: "Yes … I suppose if the whole lot conspired together and Pretoria [the Department of Justice] didn't report to us that someone was detained, the whole system would have failed" (Bekker). In another exchange similar observations were made:

If there was a weakness in the system, and I don't know how that could have been addressed, [it] was that we were dependent on being told by, I suppose, the security police, that there's a detainee before we got to him … if they didn't want you to see someone, they could have failed to report … If the security police didn't inform [us] … there's no possible way, to my mind, a magistrate could have got to [the detainee] … And that's why I don't know, the system … if it was applied properly, should have worked. But listening to the TRC hearings, [pause] it certainly appears that some people were manipulating the system. (Bekker)

Magistrates did not have free access to detainees because ultimately access was mediated and managed by others, and therefore susceptible to agendas other that that of safeguarding the well-being of detainees.

Reporting

The second area were control was lacking and not knowing was prevalent, relates to the already-mentioned reports and what happened to them by way of follow up and action. Magistrates often did not know what happened to their reports and if complaints or requests were addressed. Some interviewees were very candid about this issue, for example stating, "I don't know what happened to them after that [after they went to Head Office]" (Cartwright) and "I never heard anything" when asked if requests were implemented (Muller). It appears that magistrates also did not know where the main locus of decision-making in the complaints and safeguard system was located – although suffice to say it was not located with them.

As the above discussion of dual obligations, reporting and control clearly illustrates, the complaints and safeguard system was fundamentally flawed in design and, by implication, intended to fail. If these were the only shortcomings of the system then magistrates could make an argument for being relatively blameless: they had been handed a poisoned chalice, placed in an invidious position, whatever they did would not have protected the detainee because the system overall was not designed to do so. They were, in a range of key areas, powerless. But this is not the whole story. As a result of the way in which magistrates administered the safeguard and complaints machinery they made an already flawed system worse. Three main ways emerged from the interviews, through the routinisation of visits, the use of visits and reporting as a means of disengaging rather than engaging with their mandate, and the conduct of visits in the presence of police personnel. Each of these factors will be address in more detail below. It is important to register before moving on that these are clearly not the only, or necessarily the most serious, ways in which magistrates rendered a bad system worse, they are merely those types of conduct that interviewees were prepared to admit to or talk about.

Rendering a Bad System Worse

The Routinisation of Visits

When asked about the practicalities of visits, magistrates talked in terms of routine and sanctioned access: "we would go on a particular day" (Cartwright), "you let them know you're coming" (Van Rooyen), "one must make an appointment" (Prinsloo), "I arrange before-hand with the Station Commander, I'm coming to visit … that time and that time" (Van Zyl). In an important corroborative statement, Cartwright stated:

Well I don't think we had free access, in the sense that I couldn't just go … say I want to see so and so, because you wouldn't know if they were being held in detention or not. The Chief Magistrate's office used to get a list of people who were being held … and then they would, um, tell you, you've got to go and visit these people. Today so and so is at this police station, and so and so is at that police station. And you'd have the list … you couldn't have gone to any police station at any time and just say, I'm a magistrate of the Department of Justice, I want to see so and so. I don't think they would have allowed you to do that.

This comment says as much about the degree of magisterial engagement with the protection mandate as it does about restrictions on access to detainees. Through the routinisation of visits, both in terms of making appointments and keeping to set days and times as well as in terms of visiting named detainees rather than hunting down the hidden and the nameless, magistrates collaborated in rendering the safeguard and complaints system ineffective. Why could visits not have been unannounced? Why in a variety of ways were magistrates so passive and reactive? The only way a custodial safeguard stands any chance of working is if those overseeing it have free access and can make unannounced visits to those whose well-being is placed in their hands.22

Moral Disengagement

The visits and reporting procedure appear to have been seen by many magistrates as an end in themselves, as a means of facilitating moral disengagement from rather than engagement with the safeguard system. Once magistrates had conducted visits and filed a report they had done their bit, it did not matter if any improvement in conditions or alleviation of suffering resulted as any actual action or intervention was someone else's responsibility. Magistrates, in other words, did not engage proactively with their mandate. Prinsloo, for example, stated "there was no follow up on my part" and Van Rooyen, "you report [torture] to the police … you just report them, you don't know what happened then … no, you don't follow [up]". Here the imperfections of the system about which the magistrates could do little – interference, the context of not knowing, powerlessness - were accentuated by the indifference of the magistrates themselves. Not knowing or having power blurred into not caring.

Again, it should be noted that there were those who claimed to have followed up requests and complaints and thereby more pro-actively engaged with their task: "I'm satisfied I did" (Kruger). As well as those who claimed to have made successful local interventions with the police, some magistrates talked of pursuing proactive protection by seeking out feedback from either the detainee or the authorities:

I followed it myself … if I gave a report which has to be done, I asked him when I go back … 'listen, are you satisfied, is that OK now?' (Van Zyl)
It was followed up in the sense that when you visit for the second time, then you inquire about his complaints from the first time and whether they've received attention. (Louw)
If there was any possibility that there was some substance to the complaint, I would report it to the, um, police and then I would expect them to report back to me … at the next visit, you would ask what's happened. (Bekker)

Bekker also stated that he would expect a report back from the Department of Justice when complaints were made against the police. Another strategy was not to be put off by the stated unavailability of detainees: "If I arrived there and somebody was out on investigation, 'when is he likely to be back?' … Some would say they don't know. And then you simply go back … They knew that's the way we would do it" (Bekker).23

Police Presence

Although detainees invariably saw magistrates as part of the system, it is stating the obvious that they would be more likely to speak, and speak more openly, if magistrates visited on their own rather than in the company of police personnel. Some magistrates said that no other people were present when they registered complaints (Muller, Kruger, Bekker), while others claimed that if a second party were present, such as an interpreter, they were not police personnel. Magistrates asserted, for example, that they used departmental or court interpreters (Bekker, Muller). There were, however, indications that such practices were not universal.

Sometimes, clearly, police interpreters were used: "we usually got the sergeant on duty … to interpret … they would say there's a sergeant who's going to accompany you, that's all" (Van Rooyen). Mashudu talked quite openly about being accompanied by members of the police whilst conducting detainee visits: "the station commander is the one who would accompany me to the cells, where I would go and visit … the third person can be the charge office sergeant". When challenged on this, he acknowledged the implications of the police presence:

Yes, in the company of the police they were not actually prepared to mention complaints … They did not speak freely … They normally used to say they need some books, they need some newspapers to read … those were the types of complaints I used to receive.
Q: Was there any law saying that policemen had to be with you while visiting prisoners?
Well, unfortunately I did not inquire why they had to be in my company … they would just accompany and I did not even query it.

The routinisation of visits, the eagerness to disengage from their task, and a kind of willed blindness to the implications of police presence provide some indication of the way in which magistrates became complicit in human rights abuses. These examples should be seen as the more visible cracks in a wall of denial and self-proclaimed innocence, relatively benign deeds that magistrates talked about because they did not see them as wrong or liable to open them up to criticism. They provide an insight into the kinds of patterns of behaviour, alliances, assumptions, ignorance, obedience and passivity that generated far worse abuses, by both magistrates and others during the apartheid era.24

The next section of the paper examines the confession-taking process, which it is argued, mirrors the safeguard system. It too was and still is both structurally flawed and has been made to work in the interests of the state, in part by magistrates.

Confessions/Statements

The principle that confessions and admissions had to be freely and voluntarily made to be admissible as evidence in court was given statutory force in Sections 217(1) and 219(A) of the Criminal Procedure Act of 1977. However, if a confession or admission had been made before a magistrate, the onus was on the deponent to prove on the balance of probabilities that it was not freely and voluntarily made. There were very few cases in which courts found that conditions of solitary confinement or interrogation procedures constituted sufficient grounds to render evidence inadmissible. Although it was argued repeatedly by apartheid's opponents that the very nature of detention compromised detainee evidence, the courts were not prepared to hold that a confession or admission was inadmissible unless there was clear evidence that it was made as a result of coercion or physical assaults during interrogation. The legal significance of a confession, which often was enough on its own to secure conviction, placed a huge responsibility on magistrates:

the security police had … a number of options. The first option was don't get an admission or confession. Just say … we've done our jobs as policemen and we've got the evidence. That was beyond them … The second option would be to have, what was called, an admission. And an admission is an admission of a fact that is not necessarily a confession to a crime. OK. And an admission does not have to be made before a magistrate, because it's not so prejudicial. But it doesn't add up to that much. The third option is a confession made before somebody who is not a magistrate. But then the onus is on whoever receives that confession to prove it's really voluntarily made. So again, using the system, why not rely on the law which says if it's made before the magistrate the onus is on the detainee to prove its not freely and voluntarily made. Because how on earth do you prove it … It is your word against that of all the policemen who've ever had control of you. (Satchwell, 25/8/99)
in court … the magistrate would come. He would confirm that he had hand written [the confession], or he would … confirm that nothing was told him because if he had been told of an assault, he definitely would have written it down. And very infrequently would a judge reject a confession statement made to a magistrate … Very seldom were judges disbelieving of magistrates [or] critical of magistrates. (Satchwell, 25/8/99)

The first quotation illustrates the way that magistrates became part of a system that was used against detainees and the second that they were far from being alone in their culpability. Satchwell continued: "if one is criticizing magistrates … one must equally criticise the judges. And they are more [culpable]. Because unlike magistrates, they have always been independent … judges had every protection … room for manouvre … and seldom used the inquiring critical mind" (25/8/99).

The process of taking a confession was described by interviewees as follows:

what you would have is a magistrate sitting in an office. An arrangement is made. The police arrive. There is usually a discussion in Afrikaans between policeman and magistrate. So, the point always was … there is clearly a bond. They are white Afrikaners together … persons in authority. There was no indication of independence or separation. Sometimes the policemen would remain in the room, although on most occasions they left. The magistrate would read a form … Who are you? Why do you want to make a confession? … Have you been threatened or tortured? … Went parrot-like through the form. (Satchwell, 25/8/99)25
some rules must be followed if we are taking a confession. You must be alone with the person and … try to get him calm and comfortable … I was aware that the police were very strict to such persons … before you are taking a statement … you follow a lot of questions … about three or four pages … So you are making sure that there is no pressure and there is no force on him to make a statement. (Kruger)
That's correct [the detainee was brought] to my office, in camera. And you put them at ease, [pause] at his leisure … you have formal questions, but when he starts to tell his story … I ask no questions … they can tell me if they want to tell something … he can tell his story in his own way … I want their statement to be a true version of his capacity at that stage … so that … later in court, they can see what was his state of mind: did he speak logically? did he repeat himself? … Because there was duress from the police for sure, that's for sure. (Nel)

The magistrate therefore took down answers to a list of formal questions and a confession/statement, and both documents were then submitted to the appropriate authorities. The responses from interviewees revealed their belief that procedures were in place to ensure that confessions were freely and voluntarily given, while the comment from Satchwell depicts the supposed protections as a meaningless bureaucratic exercise. This report argues that the compromised nature of the confession-taking process in many ways mirrors the structural flaws already described in connection with the complaints and safeguard system. The circulation of documentation is an illustrative example:

The detainee, knowing that his captors were sitting outside the door and knowing that that document was going to be given back to them, would say, no, of course not [he had not been abused]. It's been tea and cakes all the way. And the magistrate would not go further … I have done a lot of political trials [and] I don't know of a single magistrate who ever said … 'if you tell me of any abuse, I will not report that abuse to the people who have done so, I will take it to another authority' … The magistrate never said that because he couldn't. His job was to give it back to the policeman. (Satchwell, 25/8/99)

This is a familiar scenario: compromising documents, notably any potential complaints regarding torture and ill-treatment, going straight back to the detainee's captors, circulating within the state system rather than to outside actors, with the inevitable result that detainees, due to distrust and fear, did not speak openly and the system of detention, interrogation, torture, and prosecutions, carried on undisturbed. Satchwell said of magistrates that they "protected the integrity of the abuse."26

Several magistrates acknowledged the consequences of the fact that confessions went straight to the police in whose custody detainees had been and would return. While Cartwright talked of "undue influence", Kruger admitted that the handing of a statement to the investigating officer would make the detainee careful about what s/he said ("perhaps, perhaps, yes …") and Nel in an exchange about detainee caution, stated: "Yes … It's a very difficult position … there's a lot of questions you asked them, but you know they are under duress […]". Bekker agreed that the system was, and indeed still is, inherently flawed by the submission of confessions to the police. Similar issues were raised by confessions made by criminal suspects.

The taking of confessions was therefore intrinsically flawed for many of the same reasons that the complaints and safeguard system was flawed (the lack of magisterial independence, the nature of the recording and reporting procedure, the fact that magistrates lacked the control, knowledge and power to properly carry out their task). Kriek, for example, stated that if a person stated that he wanted to confess and was not doing so under duress, "I'll take his word for it, not knowing that there could be somebody who threatened him, just that he is too afraid to tell me. That's why I tell you, I never sensed anybody in front of [me], making a statement, actually making the statement, being pressured or whatever. Because I don't know this."27 Again, as with the safeguard system, a sense of powerlessness arising from the design of the system, operated in both directions. When asked whether he felt detainees made confessions freely, Bekker replied:

in taking a confession there is always the possibility that there's a hidden threat. And to say that I feel the person, not even speaking now about detainees, speaking about confessions in general, for me to say that I attend on this person who's making this confession freely and voluntarily, depends entirely on the answers he's given me … the honesty … depends entirely on his motives. If there is a motive, he's going to lie to me, and I won't know it of necessity.

But a flawed system was again made worse by the lacklustre way in which magistrates engaged with their mandate. It is interesting, for example, to note the measures that magistrates described taking, which in their eyes secured protection for those in custody. Bekker, for example, commented in relation to one incident: "The content of his confession was such that … I handed it in to a senior officer … If the confessions were such that they should not be handed back to the investigating officer, we didn't." Nel agreed that people were under pressure ("yes, for sure, for sure") and that he had seen people who had been ill-treated, but saw no scope for action beyond documentation: "And we make notes of that here and we reported it." This is Kruger saying what he did when confronted with a person who had obviously been assaulted but nevertheless denied it: "you recorded it as well … Many times they say that somebody else hit him or somebody else hurt him … Not the police. But then I recorded it. All of it on that form." Such actions are not likely to have protected those in custody. A related allegation is that complaints of abuse made to magistrates, here as in their custodial visits, made no difference, changed nothing. In this context, magistrates carried on taking down the confession, in a setting where the locus of action was much more obviously with them:

Where the magistrates really fell down, would be the detainee would say, 'yes I was assaulted' … And there were like two lines on the form … so it would get summarised by the magistrate. And then the magistrate would carry on and say, 'now tell me your confession'. Not, 'well I'm not going to take your confession because it cannot have been freely and voluntarily made'. So he would carry on anyway. And I don't know of a magistrate [who said], 'well I'm not going to take your confession'. And I also don't know how many detainees would have wanted that. Because it was very much, let me make a confession to get them off my back. But I also use the opportunity. (Satchwell, 25/9/99)
[the way in which magistrates took down confession statements] was one of the worst things I've come across … I have seen instances in my own practice where an accused person came there bruised and swollen … one of the questions … would be whether the accused has been assaulted or not. They would have the audacity of writing 'no'. When the person has lost teeth and all sorts of things. Within his sight. He would be looking at that person and just write … 'No assault'. (Moloi, 24/8/99)28

Magistrates, contesting the above observations, were unanimous in claiming that if abuse had taken place or seemed to have taken place they would refuse to continue with the confession. Responses included: "And if I sense [duress], then I won't take the confession" (Kriek), "if … I have a doubt when I ask him questions … and [pause] I realize he has difficulty … is not at ease … I refuse to take the confession" (Mulaudzi); "I would refuse to go on with his confession and I would take it up with the station commander … because I'm very against torturing" (Van Zyl); and:

There's a strict procedure that … was being followed. And you questioned the deponent very carefully before you take a confession from him. If there's any indication that he does not voluntary want to make a statement, you just refuse to take [it] … if there was somebody like that, I would not have taken a statement from him. (Eloff)
One or two [when asked about confessions by criminals under duress]. I, um, [pause] can remember one especially where I've said to the man, 'listen you're not supposed to tell me anything more because I think you are a little bit [pause] um, under duress'. I think he was influenced by threats. And eventually when I carried on, you know we have a form, a list of questions … eventually I got to a stage where I said to him, 'I'm not going to listen to you any more. All I'm going to do is report to … the district commander … that you told me this. And he must investigate and see to it that nobody does anything further' … he really didn't want to tell me that he was assaulted and there were further threats of assault … in those circumstances where I thought it was obvious, I thought, no, it's no use. Because it will be a fight in court later and it's going to waste everybody's time. (Liebenberg)

Interestingly, magistrates often described a hypothetical situation - if this situation had arisen they would have refused to take down a confession - rather than something that had taken place and that they had actually done.29 One magistrate also described the way in which the police could bypass obstructive magistrates:

the police brought this person to me for their confession. And [he] told me … that he didn't want to confess to anything. All he wanted was an attorney … And I then said, 'under those circumstances I'm not going to record anything you say that can be used against you. So you may leave' … [I] return[ed] later to see that my colleague has been asked by the police to take that confession. So then I was contacted by the attorney who was later instructed on behalf of that person, and I was prepared to give evidence against the, um, prosecution, that that confession wasn't taken freely and voluntarily, because on that day he did not wish to confess before me. What would change his mind to make a confession a few minutes later? … The magistrate didn't know, she did not know that that person was with me previously. (Kriek)

Here not knowing for the second magistrate included not knowing that the person had been with Kriek previously or what had happened to induce him to make a statement.30 Magistrates not only said that they refused to take confessions if there was any evidence of abuse but also made other even more expansive claims. For example: "many times they mentioned that, [pause] that they wanted to inform their relatives where they are. I made a telephone available to them" (Kruger, talking about detainees).

The ways in which magistrates failed to tackle the question of custodial violence and contributed to the production and circulation of coerced confessions in this context are strikingly familiar: a routinised and bureaucratic approach, a lack of engagement with or easy disengagement from their potential to protect and safeguard, and a trust in and association with the custodial authorities that undermined their effectiveness.31

Where there were differences between the system for taking confessions and that designed to address complaints and provide safeguards through custodial visits they, like the similarities, were primarily the result of the design of the structures concerned. Satchwell suggested that the nature of any record was influenced by the likelihood of it ever being taken from the closed state system into the light of the court room:

this is why I think there is a difference between the magistrate who is visiting the detainee and the magistrate taking a confession. When you visit the detainee in the cell … nothing may ever come of it. When you take a confession, there is a strong possibility that that confession will be used in a trial, and that you as a magistrate will be called to give evidence. And so you know that you will actually be tested, you will be cross-examined, you will be held up to some kind of judgment. And I think it would be difficult to say, no complaint was made to me. It's almost easier to record the complaint. Which is what most magistrates did. How well … and with what degree of diligence is another matter. (25/8/99)

Both the safeguard system for detainees and the process for recording confession/statements can be seen as cogs in the machine of apartheid oppression. Magistrates were used to give the systems a respectability and legitimacy but ultimately they were operated by the state for the state. In order to understand why magistrates became complicit in rendering faulty systems oppressive, and thereby in human rights abuses, it is necessary to examine magistrates' reflections on broader issues, specifically independence and the relationship between law and justice.

Magisterial Independence

At that stage, magistrates were exclusively drawn from prosecutors … magistrates were public servants. And, um, [pause] everything in the public service pertained, or was applicable to, magistrates. It was sort of funny, because you can't be a public servant and a judicial officer. It's impossible.(Mills)

A certain amount has already been said about magisterial independence in the context of dual obligations. What is striking in the light of magistrates' status as public servants is that generally, across the whole span of their work, the majority of those interviewed for this study regarded themselves as independent. Comments were made such as "I certainly don't know of anybody who was not independent" (Bekker). Independence was described by some as a kind of unofficial badge of honour - "If I'm not independent I should not be here. And then I must go somewhere else … the people I worked with, they were all independent people" (Prinsloo) – and as intrinsic to being what one interviewee described as a "proper magistrate" (Mlambo).

Interference with and compromise to the independence of magistrates, however, was predominantly understood in very specific and narrow terms: as politicians telling them what to do. For example, "um [pause] never in my life did any politician tell me what to do" (Prinsloo); "I was never influenced in any manner to pass a judgement to suit either the government, or whatever party" (Mlambo, who also claimed that being in a homeland like the Transkei made a difference because "its leaders there didn't want to interfere with the judiciary at all"); and: "Now on that I have very strong views … Not once, was there even the remotest attempt [pause] by politicians to interfere" (Bekker, who went on to give the example of a funeral that he allowed to take place in the face of security police and political opposition: "despite the fact that I gave the permission the way the government of the day didn't want it, there was not the slightest attempt [pause] in any sort of interference … I wouldn't have tolerated it"). Bekker also stated: "And the next thing that I need to say is, magistrates … speak to each other about things. I'd not even heard during that time, or any other time, of an attempt of political interference … We would have reacted very strongly." This very overt, political understanding of interference, which even critics of magistrates would probably agree was not the most pervasive violation of their independence, allowed magistrates to believe that it did not happen and therefore that they were free agents.32 As has already been discussed, however, pressure could be applied in a variety of more subtle ways to compromised the independence of magistrates.

The inherently compromised position of magistrates resulted from their status as public servants and legal officers who were required to implement the laws and policies of the day. In response to a question about whether he had ever experienced any interference or pressure from any party, Muller replied: "Not directly, but indirectly you had the feeling that things like the Director General of Justice, you know … he's basically in charge. You had to do what he says via circulars and that type of thing … you were basically a servant of the state, it came down to that perception." Fourie stated, in a similar vein: "you must also remember all the propaganda that we received. It was not easy to distinguish between propaganda and facts." There were, therefore, magistrates who said they regarded the inherently compromised position of magistrates as unsatisfactory: "But that was not right … for a magistrate or a judge to be, um, linked at all to the state, is totally unacceptable" (Muller). Muller also said that whereas in the past he had not felt free to criticise the state, now he did and had done so on many occasions.

For magistrates interviewed for this study pressure from the state manifested itself in two main areas, transfers and promotions, each of which compromised independence:

Magistrates identified some of the symptoms and structural causes qualifying their independence, while claiming that it was still possible for an individual to be independent despite such symptoms and within such structures. Muller, for example, stated with regards to visiting detainees and more generally that he "always regarded [himself] as being independent" and continued: "No, I won't say because I was a magistrate, I'd rather say because I was myself. I know myself. I'm that sort of person." He described the relationship between the individual magistrate and the structures within which s/he worked as "a battle … you were bound by certain walls and you had to battle." Similarly Fourie stated that he felt the perception that magistrates were "part of the regime" was an unfair generalisation as "there were a lot of magistrates that tried their best within the system not to be part of the wrong - doings as far as they could determine and know of what happened."

This sense of an individual capacity to be independent while occupying a compromised structural position was most clearly articulated in magistrates' discussions of the relationship between law and justice and the possibility of security justice within an unjust legal framework.

The Law and Justice

So at the Legal Hearing two not unrelated questions were put to those who staffed the legal order. How was it that you implemented without protest, and often with zeal, laws that were so manifestly unjust? And how was it that when you had some discretion as to how to interpret or apply the law, you consistently decided in a way that assisted the government and the security forces? (Dyzenhaus 1998:27)

Questions were asked about law and justice to ascertain whether magistrates had a sense of justice that was independent of apartheid laws or whether they saw the two as necessarily synonymous. A second string of interest concerned whether magistrates were troubled by feeling they had to implement laws they regarded as unjust, and if so how they responded to a sense of moral unease. These issues feed into a final set of concerns about the relationship magistrates outlined between themselves and the law – did they simply apply or interpret the law? - and related reflections on the issue of discretion: how much did they have and how was it exercised?

The Law as Justice

It is perhaps appropriate to start this discussion with a description of the relationship between law and justice from one of the study's key informants:

The fact is, justice is one thing … law is another. Law and justice are not synonyms. Because laws are … made by politicians. They have an agenda to pursue, and those laws … may not always be just. And the watchdog is the magistrate, is the judge, is the lawyer … If you interpret the law simply because it's law … without looking as to the effect it has on the people, then you are misguided … laws are always made to regulate the relationships in society … and with a certain aim … in the past regime … the programme was quite clearly to disadvantage other people and to exclude them from mainstream … life … if magistrates and judges] pronounced themselves as vigorously as they should have done, apartheid would not have lasted. (Moloi, 24/8/99)

Magistrates on the whole provided a very different view of the relationship between law and justice. The first couple of comments are of note because the law and justice are seen as one, unquestioningly and automatically, and because of the analogy made with a cricket umpire, which serves to divorce the work of the magistrate from the moral terrain and place it within the realm of rule-bound adjudication:

your functions as a magistrate is to try the matters that's placed before you … even if you, if you don't always agree with it, you've got to comply [with] the provisions of the Act. You must mete out the justice as the Act provides [pause] … that's all you can do … I mean, it's the same as your umpire in a cricket match … the rule provides so and so … And he will see that these rules are complied with. (Smit)
if I say, in a cricket match for instance, the man who is given out LBW … he wasn't out … the man was never out, but the umpire said he's out, he's out. All you can say after all this is, I'm sorry, you shouldn't have been out. But, um, there were the rules and laws and that was your function as a judge or as a magistrate, you had to mete out the justice. And the justice is meted out, according to the laws and the Acts that are placed before you. And, you know, if it was an unfair Act or a law or a pr